After a two-year campaign urging the Obama administration to stop the deportations of spouses of gay and lesbian Americans, we welcome the announcement by the Department of Homeland Security (DHS) that it will formally recognize same-sex marriages as part of its year-old ‘prosecutorial discretion’ deportation policy and other related enforcement matters.

Yesterday, in a statement to BuzzFeed, Deputy Press Secretary for the Department of Homeland Security announced a surprising shift in the policy of the Obama administration with respect to married same-sex couples facing deportation: “[W]hen exercising prosecutorial discretion in enforcement matters, DHS looks at the totality of the circumstances presented in individual cases, including whether an individual has close family ties to the United States as demonstrated by his or her same-sex marriage or other longstanding relationship to a United States citizen.” August 1, 2012

“After a two-year campaign urging the Obama administration to stop the deportations of spouses of gay and lesbian Americans, we welcome the announcement by the Department of Homeland Security (DHS) that it will formally recognize same-sex marriages as part of its year-old ‘prosecutorial discretion’ deportation policy and other related enforcement matters.

“By articulating the first federal policy to specifically recognize marriages of gay and lesbian couples as a basis for agency action, the Obama administration has indicated to deportations officers, Immigration Judges, and Immigration & Customs Enforcement prosecutors, and Citizenship and Immigration Services adjudicators that our marriages must be considered when determining whether a case is deemed low priority for deportation. The Administration should issue clear guidance memorializing this announcement without delay so that all families can be protected under a clear, consistently applied prosecutorial discretion policy.

“This move is significant beyond the immigration context, as it constitutes the first time any agency of the federal government has created a policy explicitly recognizing same-sex marriages.

“By giving legal effect to the lawful marriages of gay and lesbian couples, the Obama administration has demonstrated what we have argued all along to be true: that executive branch agencies can create policies to mitigate the discriminatory impact of DOMA on gay and lesbian binational couples, even while DOMA continues to prevent approval of those couples’ green card petitions.

Lavi Soloway

“Last summer a senior administration official promised, in a background briefing to the media, to take into account ‘LGBT families’ in its deportation policy. DHS backtracked from that language in October 2011, when it issued a letter to members of Congress stating only the ‘community ties’ of LGBT individuals facing deportation would be considered, which unambiguously abandoned the previous, more inclusive reference to ‘LGBT families.’

“Yesterday’s announcement acknowledging the marriages of gay and lesbian couples is a giant step forward honoring the struggle of thousands of loving couples who are subject to DOMA’s most punishing consequences. Hundreds of determined and brave binational couples who demanded an end to ‘DOMA deportations’ deserve tremendous credit for moving elected officials and the administration forward on this issue.

“Still, gay and lesbian Americans are not able to sponsor their spouses for green cards because of DOMA, depriving married couples of the right to build a future together, tearing apart families by separating spouses from each other and, in many cases, from their children.

“To address this immediate, irreparable harm, the administration should stop denying green card petitions filed by gay and lesbian binational couples and instead put those cases on hold pending a ruling by the Supreme Court on the constitutionality of DOMA expected next year. We are hopeful that the White House will follow today’s announcement with additional measures that will bring all lesbian and gay binational couples one step closer to full equality.”

Lavi, I knew from the first time Goel and I met with you in NYC almost 9 years ago that you would some how help us all reach our dreams of living with our partners/spouses here in our own country. Through the years you have always been here for us and thanks to you we have been able to remain here waiting for the day when we will be able to get Goel’s green card and begin to live a normal life. Thank you for all you have done and continue to do for all of us.

OMG!!! This is wonderful! Thank you everyone for all that you do to win this fight of ours.
I am lost for words…….and that doesn’t happen very often. I know that we still have a way to go, but Margie & I are in tears right now.

Well done Lavi. You have fought long and hard. It is not an easy thing to do. Only you know all the obsticals that have been put in your path. Endurance and persistence are great challenges and you are sticking with the journey.

This is good news so please don’t take this as diminishing comments, but if the person is facing deportation then they are not here on a current visa, so their status is still in limbo. They can’t get a job, go to school, do anything but exist here and what if they want to return to their home country to visit family, will they be allowed back in?

Good question, Steven and I wish I had an answer. We too (my Japanese lover of 13 years and I) would like to know too. Simply “not deporting him” is no comfort at all, as I am still a second class citizen and a stranger in my own country until my husband can work and enjoy life, liberty and the Pursuit of Happiness like any other husband of an American citizen.

Sadly, there is no definitive answer yet; but for the moment, he cannot work, and he cannot operate as a free person in the US.

August 18, 2012

Bobby and Luis

My husband and I met three days after he came to America. From that moment on we have been a family in every sense of the word. He overstayed his visa because of me, left his past because of me. This is great news to hear as he has been forced to live in the shadows for seventeen and a half years. I look forward to shaking your hand the day DOMA is repealed by congress as the yahoos on the supreme court are incapable of separating church and state. Thanks for all that you do.

Lastnight I asked a very lovely Lady to marry me and she said “You Know I Will.” Learning about this new gives US Hope. I do have faith that our union when ever we get there will be given all the respect as anyone would give a Man and Woman.

[...] Attorney David M. Brown appealed the BIA’s ruling in Adams v. Howerton, the first federal lawsuit demanding recognition of a same sex marriage and the first to challenge INS’ discrimination against gay binational couples. They lost all subsequent marriage and immigration deportation appeals (immigration attorney and Lesbian and Gay Immigration Rights Task Force founder and National Coordinator Lavi Soloway has more details on the case from 1996 here) but were thrilled last August when – as Lavi Soloway reported on his DOMA Project website: [...]

OMG!!! it is about time I am in a binational relationship and have been married to this man since Dec. of 2010. I need to know what legal ramificaitions are we facing and can he live with me. We have lived apart because of DOMA and have gone to an immigration attorney but he states the state of Texas will not recongnize our marriage and it is impossible for myself to sponsor him for citizenship and even a green card so he can be gainfully employed in the United States and work as a productive citizen and help support our family. I believe this is a step in the right direction but there is still a lot of work to be done with Texas and the immigration system. It is especially hard when you live in a border town. I am glad for this news and thank you Lavi for lobbying on our behalf. Maybe one day marriage equality will be the law through out the United States.

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.